Los Angeles Chemical Co.

National Labor Relations Board - Board Decisions

Jun 19, 1973

204 N.L.R.B. 245 (N.L.R.B. 1973)

LOS ANGELES CHEMICAL CO. 245
Los Angeles Chemical Company and Miscellaneous
Warehousemen , Drivers & Helpers Local 986, Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America . Case 21-
CA-10730
June 19, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On January 22, 1973, Administrative Law Judge
Maurice Alexander issued the attached Decision in
this proceeding. Thereafter, the Respondent and the
General Counsel filed exceptions and supporting
briefs, and the Respondent and General Counsel filed
answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and the
briefs and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge as
modified herein.'
For the reasons set forth in the Administrative Law
Judge's Decision, we agree that the 33 employees of
the Respondent who engaged in a work stoppage on
March 10, 1972, did so in the mistaken belief that the
Respondent would not furnish the Union certain in-
formation which it required prior to the commence-
ment of negotiations. As discussed in the Decision,
the Respondent mailed out the requested information
to the Union the day after the request was made and
the Union received the information on March 10, but
did not immediately learn that the information had
arrived before the strike commenced. Accordingly, in
agreement with the Administrative Law Judge, and in
i The Respondent and the General Counsel have excepted to certain credi-
bility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an Administrative Law Judge's resolutions
with respect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect . Standard Dry Wall
Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C A 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 The Respondent moved to reopen the hearing to enable it to present
certain evidence which it alleges as defenses to the findings that certain
strikers who allegedly made unconditional offers for reinstatement were not
replaced , as set forth in the Administrative Law Judge' s Decision We note
that the evidence sought to be adduced is vaguely defined and that no
showing has been made that it is newly discovered , or evidence which has
become available only since the close of the hearing , or why it was not
previously presented at the hearing . We, therefore, find that the motion fails
to meet the requirements of Sec. 102.48(d) of the Board's Rules and Regula-
tions, Series 8, as amended , and we deny the motion See Williams Press, Inc,
195 NLRB 905
the absence of any contention to the contrary, we find
that such strike was a lawful economic strike at its
inception. We also agree that the record supports the
finding that 18 of the strikers reasonably communi-
cated to the Respondent their unconditional offers to
accept reinstatement on the afternoon of March 16,
1972, and that the Respondent's refusal to honor such
requests prolonged the strike and converted the eco-
nomic walkout into an unfair labor practice strike.
It is undisputed that on March 17 all 33 strikers
named in the complaint made an unconditional re-
quest for reinstatement , and at the time of the hearing
none had been reinstated or offered reemployment.
Since the Respondent presented no legitimate or
substantial business justification for refusing to rein-
state 29 of the 33 strikers on March 16 and 17, the
Administrative Law Judge found that the Respondent
thereby violated Section 8(a)(3) and (1) of the Act. We
agree with this finding.
However, for the reasons set forth below, contrary
to the Administrative Law Judge's finding, we also
find that by its refusal to reinstate Patino, George,
and Johansen the Respondent similarly violated the
Act. As for Kanehl, while we agree that she was re-
placed prior to the date of her unconditional offer to
return to work, we find that the Administrative Law
Judge had inadvertently neglected to order Respon-
dent to place her on a preferential hiring list.
Patino: The record shows that Mike Patino was
employed as leadman in the drum department and
applied for reinstatement on March 16, 1972. No one
has been hired in his job classification since the strike
began. The Administrative Law Judge accepted the
Respondent's explanation that prior to the strike Pati-
no performed limited work and the department was
overstaffed, and that as soon as the strike started the
drum department was abolished and Patino's job was
eliminated . Finding that Patino's job, therefore, no
longer existed, he concluded that the Respondent act-
ed on the basis of legitimate business considerations
and was, therefore, not obligated to reinstate him. We
do not agree.
We find that the Respondent has not sustained its
burden of proof of showing that Patino's job was
eliminated . The basis for concluding that Patino's job
was eliminated was based on the testimony of Compa-
ny President Klingensmith who did not of his own
knowledge know that the job had been eliminated.
We find significance in the fact that the person most
familiar with the facts concerning Patino's job, Plant
Superintendent Blane , was not available to testify.
We find, therefore, that there is insufficient evi-
dence to support a finding that the job was eliminated
prior to Patino's unconditional offer to return to
work. Furthermore, the record is clear that there is no
204 NLRB No. 29
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence showing that Patino's job would have been
terminated if he had not gone out on strike. Klingen-
smith, in fact, admitted that Respondent did not in-
tend to terminate anyone pursuant to Blane's
recommendation and indeed the record shows the re-
organization was based primarily on considerations
resulting from the strike. Accordingly, we find that
Patino was entitled to reinstatement on March 16?
George: Employee Claudia George was employed
as a posting clerk when the strike started on March 10,
1972. On that date, employee King, an accounts paya-
ble clerk, was transferred to George's position and
was so employed at the time of the hearing. George
applied for reinstatement on March 17. The record
shows that on and after March 17, the date the strike
became an unfair labor practice strike, the Respon-
dent hired a series of individuals to work as accounts
payable clerks. The Administrative Law Judge found
that King had been transferred into George's job and
that she had therefore been replaced, and the Respon-
dent thus had no obligation to reinstate her.
In our view the Administrative Law Judge has ap-
plied our Laidlaw doctrine too literally. The Board in
its decision in Laidlaw Corporation held that strikers
who unconditionally apply for reinstatement, as here,
when their positions are filled by permanent replace-
ments are entitled to full reinstatement upon depar-
ture of their replacements or when jobs for which they
are qualified became available, unless they have in the
meantime acquired regular and substantially equiva-
lent employment or the employer can sustain its bur-
den of proof that the failure to offer full reinstatement
was for a legitimate and business reason 4 The Re-
spondent has failed to show why it did not offer to
return George to King's job for which the record indi-
cates George was qualified, or to return King to his
former job in which case George's former job would
be available. We find under either factual situation
George was entitled to reinstatement on March 17.
Johansen: Edward Johansen was employed as pur-
chasing clerk in the labor department at the time he
went on strike. The record shows that on November
10, 1971, almost 4 months before the strike, Office
Manager Ottinger had reported to President Klingen-
smith that Johansen was not performing well, and
recommended that employee Hernandez, who
worked in the labor department, be promoted to
Johansen's job. The parties stipulated that it was only
after the strike began, around March 13 or 14, that
Hernandez was promoted to Johansen's job. The Ad-
ministrative Law Judge found that Hernandez was
3 Cf. Duncan Foundry and Machine Works, Inc, 176 NLRB 263, 264, fn
1.
° 171 NLRB 1366, enfd 414 F 2d 99 (C.A 7, 1969 ), cert . denied 397 U S.
920 (1970).
permanently promoted for business reasons, and
when Johansen applied for reinstatement on March
17, he had been replaced and the Respondent was not
obligated to reinstate him.
As in the case of George above, Hernandez' job
from which he had been promoted was still available,
and the Respondent had failed to show why it did not
offer to return Hernandez to his former job, in which
but for the strike he would still be working, or Johan-
sen to Hernandez' former job which was available.
Under either factual situation, we find that Johansen
was entitled to reinstatement on March 17.
Kanehl: The record shows that Judith Kanehl was
replaced in her job on March 14 or 15, and that she
did not make an unconditional offer until March 17,
thus she was, therefore, not entitled to reinstatement.
However, the Administrative Law Judge neglected to
order, as required under Laidlaw, that she be placed
on a preferential hiring list and to direct that she be
entitled to full reinstatement upon the departure of
her replacement.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Los
Angeles Chemical Company, South Gate, California,
its officers, agents , successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in any labor organi-
zation by unlawful discrimination in regard to hire or
tenure of employment or any term or condition of
employment.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer to the employees named in Appendix A
immediate and full reinstatement to their former posi-
tions or, if those positions no longer exist, to substan-
tially equivalent positions, and make them whole for
any loss of earnings they may have suffered by reason
of Respondent's discrimination against them, in the
manner set forth in the section in the attached Admin-
istrative Law Judge's Decision entitled "The Reme-
dy.„
(b) Place employee Judith Kanehl' s name on a
preferential hiring list and offer her full reinstatement
upon departure of her replacement or when a job in
which she is qualified becomes available.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
5 See Brocks Research & Manufacturing, Inc, 202 NLRB No 93
LOS ANGELES CHEMICAL CO. 247
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due and the right of reinstatement under the
terms of this Order.
(d) Post at its plant in South Gate, California, co-
pies of the attached notice marked "Appendix B." 6
Copies of said notice, on forms provided by the Re-
gional Director for Region 21, after being duly signed
by representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
Edward Johansen March 17, 1972
Benito Lara March 17, 1972
Simon Lopez March 17, 1972
Portirio M. Lopez March 17, 1972
James Myers March 16, 1972
Pedro Rodriguez March 16, 1972
Rafael Ventura March 16, 1972
John Watson March 16, 1972
Francisco Zendejas March 16, 1972
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
6 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX A
Employee Date of Entitlement
to Reinstatement
Sharon Bryan August 9, 1972
Diana Cerjak March 16, 1972
Wendell Draper March 16, 1972
Enedina Esparza March 17, 1972
Joan Gerlach May 12, 1972
Mary Lane March 16, 1972
Gloria Lanter March 17, 1972
Maureen Lowman March 16, 1972
Kenneth Seamans March 16, 1972
Jesus Arreola March 16, 1972
Mike Patino March 16, 1972
Santiago Casias March 16, 1972
Guillermo Espinoza March 17, 1972
Marcelo Estrada March 17, 1972
Robert Freeland March 16, 1972
Jose Gracia March 16, 1972
Manuel Gracia March 16, 1972
Lorenzo Gonzales March 17, 1972
Gilbert Granillo March 17, 1972
Luis Hernandez March 17, 1972
Antonio Jaimes March 17, 1972
Claudia George March 17, 1972
Manuel Jaramillo March 17, 1972
After a trial at which both sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the law and
has ordered us to post this notice; and we intend to
carry out the order of the Board, and abide by the
following:
WE WILL NOT unlawfully refuse to offer to rein-
state strikers who unconditionally applied for re-
instatement at a time when their jobs were still
available.
WE WILL NOT unlawfully refuse to reinstate re-
placed strikers to jobs which became avialable
for them after they unconditionally applied for
reinstatement.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of rights guaranteed by the National La-
bor Relations Act.
WE WILL offer to reinstate the employees listed
below to their former jobs or give them substan-
tially equivalent jobs, and pay them for any earn-
ings which they lost because of the dis-
crimination against them, plus 6-percent interest:
Sharon Bryan
Diana Cerjak
Wendell Draper
Enedina Esparza
Joan Gerlach
Gloria Lanter
Maureen Lowman
Kenneth Seamans
Jesus Arreola
Santiago Casias
Gilbert Granillo
Luis Hernandez
Antonio Jaimes
Manuel Jaramillo
Benito Lara
Porfirio M. Lopez
Simon Lopez
James Myers
Pedro Rodriguez
Rafael Ventura
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arturo Espinoza John Watson
Marcelo Estrada Francisco Zendejas
Robert Freeland Mike Patino
Jose Garcia Claudia George
Manuel Garcia Edward Johansen
Lorenzo Gonzales Mary Lane
WE WILL place Judith Kanehl's name on a pref-
erential hiring list and offer her reinstatement
upon the departure of her replacement, or when
a job in which she is qualified becomes available.
Los ANGELES CHEMICAL
COMPANY
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5254.
DECISION
MAURICE ALEXANDRE, Administrative Law Judge: This
case was heard in Los Angeles, California, on August 22, 23,
24, 28, and 29, 1972, upon a complaint issued on May 24,
1972,' alleging that Respondent had violated Section 8(a)(3)
and (1) of the National Labor Relations Act, as amended,
by refusing to reinstate certain strikers. Respondent asserts
that the refusal was lawful.
Upon the entire record,' my observation of the witnesses,
and the excellent brief filed by the General Counsel,3 I make
the following:
i Based upon charges filed on March 6, 17, and 22, 1972
2 The General Counsel 's unopposed motion to correct the transcript of the
testimony is granted Resp Exh 30 is rejected
3 Respondent merely filed a letter stating that it"is confident that its
position is soundly supported by the record developed at the hearing and by
controlling principles of law." Since Respondent unfortunately has not dis-
closed either its position or the principles of law upon which it relies, these
can only be surmised
FINDINGS AND CONCLUSIONS 4
The Unfair Labor Practices
A. Events
Respondent Corporation is engaged in the manufacture
and distribution of industrial, agricultural, and laboratory
supplies in South Gate, California. On February 17, 1972,5
the Board certified the Union as the bargaining representa-
tive of Respondent's office employees and, on March 3, it
certified the Union as the representative of Respondent's
production and maintenance employees. Prior to the certifi-
cations but subsequent to the elections, i.e., on February 14,
the Union had sent Respondent a letter requesting certain
information which it required prior to the commencement
of negotiations . Receiving no reply, Union Business Repre-
sentative Matull sent Respondent a letter on March 7 stat-
ing that the Union would take economic action if
Respondent did not respond to its request for information
within 48 hours. On March 8, Respondent mailed the infor-
mation to the Union, and it was received by the latter on
the morning of March 10.
Union Business Agent Matull did not immediately learn
that the information had arrived, inasmuch as he went to
Respondent's premises at 6 a.m. on March 10, presumably
to supervise the strike by Respondent's employees which
began that day. Later in the day and again on March 13 and
15, representatives of Respondent and the Union held con-
versations during which the subject of the strikers' return to
work was discussed. There is a dispute as to whether or not
the 33 strikers named in the complaint made unconditional
applications for reinstatement on March 10, 13, and 16. It
is undisputed, and I find, that no such application was made
on March 15, but that unconditional applications were
made by the 33 on March 17. It is also agreed, and I find,
that none of the 33 strikers was taken back by Respondent,
and that none has been offered reinstatement.
B. Contentions and Findings
1. The General Counsel argues that the sole purpose of
the strike when called was to obtain the bargaining informa-
tion sought. Presumably, Respondent controverts that posi-
tion on the theory that another purpose of the strike was to
compel Respondent to reinstate three employees who had
been discharged, and hence that the applications for rein-
statement made before March 17, discussed below, were
4 No issue of commerce is presented The complaint alleged and the answer
admits facts which, I find, establish that the Respondent is an employer
engaged in commerce and in operations affecting commerce Cf. Brotherhood
of Teamsters & Auto Truck Drivers, Local No 70, IBT (C & T Trucking Co),
191 NLRB 11, and Fresno Macaroni Manufacturing Co., Inc. d/b/a Perfection
Macaroni Company, et at, 191 NLRB 82, which appear to overrule sub
silencio In I of Yuba, Sutter & Colusa Counties Building & Construction Trades
Council, AFL-CIO, et al. (James N Wilson), 189 NLRB 450.
I further find that Miscellaneous Warehousemen, Drivers & Helpers Local
986, hereafter called the Union, is a labor organization within the meaning
of the Act
5 All dates refer to 1972 unless otherwise stated
LOS ANGELES CHEMICAL CO. 249
conditional .6 I agree with the General Counsel. Matull testi-
fied without contradiction that he decided in the early af-
ternoon of March 9 to call a strike for the following day in
order to obtain the requested information, and that he so
informed some employees. Moreover, the Union did not
inform Respondent, prior to calling the strike, that it had
other reasons for striking. If it in fact had other reasons, it
surely would have disclosed them, inasmuch as a strike for
objectives which were unknown to Respondent would have
been pointless. I therefore credit Matull's testimony, and
find that the Union called the strike solely to compel Re-
spondent to furnish the requested information? I further
find, in agreement with the General Counsel, that such
strike was a lawful economic strike at its inception. I also
find that the strike became an unfair labor practice strike on
March 16. As found below, Respondent unlawfully refused
to reinstate certain strikers who unconditionally applied for
reinstatement on March 16. By that date, the Union had
already received the bargaining information sought from
Respondent. Accordingly, the unlawful refusal to reinstate
must have been the reason for continuing the strike after
such refusal. I find that such refusal "had the natural effect
of tending to prolong the strike" and "converted what had
commenced as an economic walkout into an unfair labor
practice strike." International Van Lines, 177 NLRB 353,
355, affirmed by the Supreme Court on other grounds 409
U.S. 48 (1972).
2. The General Counsel contends that the Union's ver-
sion of Matull's March 10 and 13 conversations with Jones,
Respondent's labor relations adviser, should be credited,
and that Matull's statements to Jones on each of those two
occasions constituted unconditional offers to return to work
made on behalf of the 33 strikers named in the complaint.
Presumably Respondent takes the opposite position.
Reader, a union business agent, testified that. Jones in-
formed Matull on March 10 that Respondent had sent the
information, and that Matull told Jones that if all the infor-
mation sought had in fact been received everyone could go
6 On March 8 , Respondent discharged employee Crowley , a member of the
Union 's negotiating committee for the office unit. On dates not disclosed by
the record , the Union filed unfair labor practice charges respecting Crowley's
discharge . Those charges were withdrawn on March 30 and April 10 Em-
ployees Sanko and Loflin had been discharged before Crowley, and the
Union had also filed unfair labor practice charges relating to them By letter
dated February I, the Regional Director notified counsel for the Union that
he had dismissed the charge relating to Loflin. An appeal from such dismissal
was filed together with a new charge . By letter dated February 8, the Board's
Office of Appeals notified counsel for the Union that disposition of the
appeal would be deferred pending investigation of the new charge . Thereaf-
ter, in May, the appeal was denied . By letters dated March 9 , the Regional
Director notified counsel for the Union that he had dismissed the charge
relating to Sanko and the new charge relating to Loflin None of these
charges are involved in this proceeding.
Employee Casias testified that he was told by employee Granillo, a
member of the Union 's negotiating committee, that the strike was called
because Respondent had not responded to the Union 's request for informa-
tion He then testified , following a leading question , that Granillo stated that
another reason was that Respondent had discharged "some guy from the
front office." I credit Granillo's testimony to the contrary . In addition, I
accord no probative value to the testimony of employee Anderson that an
unidentified person during an employee meeting on March 9, at which time
no union representative was present , stated that they were going on strike
because of Crowley's discharge and to obtain a contract
back to work.8 Jones testified that he asked Matull what the
strike was about, that Matull answered that Respondent
had fired two union committeemen and had refused to fur-
nish bargaining information, and that there was no discus-
sion respecting termination of the strike. It is unnecessary
to resolve the conflict. Even were I to accept Matull's testi-
mony as to Matull's statements, I find that they did not
constitute an unequivocal offer to return to work, since the
offer was subject to a condition precedent-whether Matull
agreed that Respondent had furnished all the information
requested.
The question whether Matull made an unconditional of-
fer on March 13 is more difficult. Matull and Union Busi-
ness Representative Harren testified that on that date
Matull told Jones that the information received from Re-
spondent was adequate and that the Union would withdraw
the picket line and everybody would return to work; and
that Jones replied that the Union could do as it wished but
that Respondent was not going to take back the office em-
ployees and intended to begin replacing the warehouse em-
ployees at the end of the week. Jones testified that Matull
stated that he would withdraw the picket line if Respondent
took back all the strikers; that Jones asked whether Matull
meant to include the three employees who had been dis-
charged; that Matull answered affirmatively; and that
Jones replied that Respondent would not take back the
dischargees, had begun to replace some of the office em-
ployees, and would probably replace production and main-
tenance employees who did not return to work.
Although the General Counsel does not claim that the
Union made an unconditional offer on March 15, examina-
tion of the testimony respecting the conversation on that
date may illuminate and help resolve the conflict in testimo-
ny relating to March 13. On March 15, representatives of
Respondent and of the Union met with a Federal mediator.
Again there is conflicting testimony as to whether the Union
stated that everyone would return to work if Respondent
would reinstate the three discharged employees. At some
point during the meeting, Jones, Company President Klin-
gensmith, Union President Riley, and the mediator went to
another room and met privately. Riley testified that Jones
asked whether the Union insisted on the reinstatement of
the three dischargees as to whom the Union had filed unfair
labor practice charges, that Riley replied that "we would
like to see them go back to work," that Jones refused, and
that Riley then stated, "Well, let's let the NLRB then decide
on the charges." Klingensmith and Jones testified that Riley
stated that he would see what he could do about settling the
problem by separating the dischargees from the other strik-
ers. Following that testimony, the parties stipulated that, if
recalled as a witness, Riley would give testimony identical
with a statement contained in his prehearing affidavit, i.e.,
that at the private meeting Jones refused to take back the
dischargees, and that Riley replied, "O.K. It is not an issue.
We will let the Board do with them as it wants."
It is clear from the record that reinstatement of the three
dischargees was discussed by Riley and Respondent at the
private meeting; that Respondent refused to reinstate them;
that Riley decided to pursue Board process as the Union's
8 In view of this testimony, I do not accept Matull's testimony that he
unconditionally offered to return all the strikers back to work
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
means of obtaining their reinstatement, and to eliminate the
issue as between the Union and Respondent; and that he so
informed Respondent. The reasonable inference is that re-
instatement of the dischargees had theretofore been an issue
between the Union and Respondent, and had caused the
strike to continue beyond March 13. This is not surprising.
Undoubtedly, the Union had a strong desire to obtain rein-
statement of at least one of the dischargees, Crowley, who
was on the Union's negotiating committee. Although rein-
statement of the dischargees was not one of the initial rea-
sons for the strike, continuation of the strike was a means
of exerting pressure upon Respondent to obtain the rein-
statements which, thus far, had not been obtained through
Board process. However, Respondent's adamant refusal to
reinstate the dischargees and its statements respecting re-
placement of strikers made it apparent that continuation of
the strike entailed the risk of loss of the strikers' jobs
through replacement. I am persuaded that Riley according-
ly concluded on March 15 that the matter of reinstatement
of the dischargees should be pursued solely through Board
process, and that the strikers' fobs should be protected by
terminating the strike. For these reasons, I am constrained
to credit Jones' version of his conversation with Matull on
March 13. It follows, and I find, that the Union's offer on
that date was not unconditional and did not give rise to an
obligation on the part of Respondent to reinstate any of the
strikers.
3. The General Counsel also contends that 18 of the
strikers named in the complaint made unconditional appli-
cation for reinstatement on March 16.9 Presumably, Re-
spondent takes a contrary positionA agree with the Gene-
ral Counsel.
There is considerable testimony that between 1:30 and
2:30 p.m. on March 16, the 18 strikers accompanied by
Matull went to Respondent's office building; that each had
a slip of paper stating, "I hereby unconditionally apply for
reinstatement to my former job";and that employer Draper
read one of the slips to Jones. Jones testified that a group
of 10 to 15 people came to the door in the late afternoon
March 16; that some were holding papers; and that some-
one said, "We are here to give you some slips"; that "they"
might have started reading slips but that he closed the door.
Jones further testified that he then talked privately to Ma-
tull who stated that the strikers wanted to go back to work;
that Jones replied that he could not take back the three
dischargees, and would so notify the Union by telegram;
and that Matull made no comment. Matull testified that
Jones replied that he would let the Union know what deci-
sion Respondent's board of directors reached. Several strik-
ers testified that following his conversation with Jones,
Matull told them to report the next morning ready to go to
work. The record contains a telegram, dated 4:35 p.m. on
March 16, from Klingensmith to the Union, stating that the
"conditional" offer to return to work by "some" of the
strikers was rejected, and that the strikers had been re-
placed.
I find that the 18 strikers made unconditional application
for reinstatement on March 16. The record establishes that
they went to see Jones for the purpose of making such
application, and I credit the testimony that Draper read the
application slip to Jones, since it contained only one short
sentence and could be read quickly. Draper said nothing
about reinstatement of the three discharged employees, and
the application was thus unconditional. T° Such application
was in no way affected by the remarks made to Jones in his
subsequent private conversation with Matull, whose version
of the conversation I credit.
4. There is no dispute, and I find, that the 33 strikers
named in the complaint made an unconditional request for
reinstatement on March 17, and that none has been reinstat-
ed or offered reinstatement.
5. The General Counsel contends that the 33 strikers are
all entitled to reinstatement. Presumably, Respondent's po-
sition is that they are not so entitled either because they
were permanently replaced or because theirjobs were abol-
ished before they requested reinstatement. Each of the 33
strikers is discussed immediately below.
(a) When the strike began on March 10, Respondent
employed five truckdrivers. Three of these, Freeland, Wat-
son, and Zendejas, were among the strikers who requested
reinstatement on March 16. The parties stipulated that Re-
spondent hired four truckdrivers on the following dates:
Jensen March 16
Dudley March 16
Cummings April 10
Noe June 16
It is apparent that Cummings and Noe did not constitute
timely replacements. The General Counsel contends that
the two new hires on March 16 similarly should not be
regarded as timely replacements, inasmuch as the record
does not show the time of day when they were hired. Since
the issue of replacement is an affirmative defense made by
Respondent, it has the burden of establishing. Having failed
to show that the new men were hired before the three strik-
ers requested reinstatement on March 16, I find that they
were entitled to reinstatement on that date. NL.R.B. v.
Fleetwood Trailer Co., Inc., 389 U.S. 375 (1967).
(b) When the strike began, Respondent employed six
warehousemen. Three of these, Casias, Jose Garcia, and
Rodriguez, were among the strikers who requested rein-
statement on March 16. The parties stipulated that Respon-
dent hired five warehousemen on the following dates:
9 The 18 are as follows. Tricollo May 22
Sharon Bryan Robert Freeland Kamp May 25
Diana Cerjak
Wendell Draper
Jose Garcia
Manuel Garcia Bell June 9
Joan Gerlach James Myers McMillan August 14
Mary Lane Mike Patino Molner August 26
r L m nM Pedro Rodri uezowau een a
Kenneth Seamans
g
Rafael Ventura 10 Even if it were assumed that Jones shut the door before Draper finished
Jesus Arreola John Watson reading the application, such action would not require a finding that no
Santiago Casias Francisco Zendejas application was made Cf The Barnslder, Inc, 195 NLRB 754.
LOS ANGELES CHEMICAL CO. 251
It is clear that none of these was a timely replacement for
any of the three applicants . The record also shows that one
Lucero began working as a warehouseman on August 9, but
does not disclose his date of hire . Since the record does not
establish that he was hired before the application for rein-
statement by the three strikers , I find that they were entitled
to reinstatement on March 16.
(c) Employee Granillo was employed as a warehouse
leadman at the time he went on strike . Respondent hired
one Lucero as acting leadman on March 16. Granillo ap-
plied for reinstatement on March 17 . I find that , as an unfair
labor practice striker from and after March 16, Granillo was
entitled to reinstatement when he applied therefor on
March 17, unless he had been replaced before the strike was
converted into an unfair labor practice strike . Since Re-
spondent has failed to show that Lucero was hired before
the conversion of the strike , I find that Granillo was entitled
to reinstatement on March 17 . N.L.R.B . v International Van
Lines, 409 U . S. 48 (1972).
(d) The record shows that ten of the laborers who went
on strike applied for reinstatement on the following dates:
Jesus Arreola March 16
Rafael Ventura March 16
Guillermo Espinoza Marcy 17
Marcelo Estrada March 17
Lorenzo Gonzales March 17
Antonio Jaimes March 17
Manuel Jaramillo March 17
Benito Lara March 17
Simon Lopez March 17
The parties stipulated that Respondent hired 13 laborers on
the following dates:
Morris Hibbitt 3-16
Steven Robertson 3-16
Richard Delgado 3-21
Leandro Padilla 3-23
Jorge Hurtado 3-28
Johnny Amador 3-28
Antonio Mendoza 3-31
Humberto Gonzales 4-10
Vidal Lopez 5-15
Daniel Murray 7-7
Moises Martinez 8-17
Rodrigo Lopez 9-21-71
Sergio Padilla 2-1
Since Respondent has failed to establish that Hibbitt and
Robertson were hired before the three laborers applied for
reinstatement on March 16 , I find that those three are enti-
tled to reinstatement on that date.
The strikers who applied for reinstatement on March 17
became unfair labor practice strikers on March 16. Since
Respondent has failed to show that Hibbitt and Robertson
were employed before the conversion of the strike on that
date , I find that the remaining seven laborers were entitled
to reinstatement when they applied therefor on March 17.
(e) At the time he went on strike , employee Hernandez
was employed as a warehouseman-relief truckdriver. On
March 16 , Respondent hired one DeHart in that category.
On March 17 , Hernandez applied for reinstatement . For the
reasons noted in paragraph (c), supra, I find that Hernandez
was entitled to reinstatement on March 17.
(f) At the time he struck , employee Myers was employed
as leadman in the dust department . He applied for reinstate-
ment on March 16 . No one has been hired in that classifica-
tion since the strike began . Myers was entitled to
reinstatement on March 16 unless Respondent has estab-
lished that his job was eliminated prior to his application.
I find that it has not sustained its burden . The record shows
that , in a memorandum dated January 27 and addressed to
President Klingensmith , Plant Superintendent Blane ques-
tioned the need for a leadman in the dust department. Klin-
gensmith testified that since the strike began there has been
no leadman , and that the department has been operating
directly under the plant superintendent . He further testified
that at the time of Blane's memorandum Respondent did
not intend to discharge anyone to implement Blane's rec-
ommendations ; that no jobs were eliminated prior to the
time the strike began on March 10 ; and that decisions re-
specting job elimination were made by Blane after discus-
sion with Klingensmith . Blane did not testify.
I find that the record establishes only that Respondent
has failed to replace Myers, and that it does not establish
that Myers ' job was eliminated . I accordingly find that
Myers was entitled to reinstatement on March 16.
(g) At the time he struck, employee Patino was employed
as leadman in the drum department . He applied for rein-
statement on March 16 . No one has been hired in that
classification since the strike began . Patino was entitled to
reinstatement unless Respondent has established that his
job was eliminated before his application . Blane 's memo-
randum stated that the working leadman in the drum de-
partment performed limited work, and that the department
was overstaffed . Klingensmith testified without contradic-
tion that as soon as the strike began, the drum department
was consolidated with another department supervised by
employee Oliva , and that the job of leadman in the drum
department was eliminated . There is nothing to show that
this action was taken as a reprisal because Patino joined the
strike . On the contrary , the evidence indicates that Respon-
dent acted on the basis of legitimate business consider-
ations. Accordingly , I find that Patino 's job no longer
existed when he applied for reinstatement , and that Respon-
dent was not obligated to reinstate him.
(h) At the time he struck , Porfirio Lopez was employed
as a mechanic . He applied for reinstatement on March 17.
No one has been hired as a mechanic since the strike began.
Lopez is entitled to reinstatement on March 17 unless Re-
spondent has established that his job was eliminated prior
to his application . In his memorandum of January 27, Blane
stated that the working foreman in the maintenance depart-
ment , presumably the department where Lopez worked, was
doing a commendable job, but that the department was
overstaffed and could operate more efficiently and econom-
ically with four instead of six men . The parties stipulated
that one of the mechanics was terminated on May 12. Klin-
gensmith testified that the recommendations in Blane's
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
memorandum were implemented "after the strike started,"
that he believed that jobs in the maintenance department
were eliminated since there were only three men (presum-
ably in addition to the working foreman) in that department
at the time of the hearing, but that he did not know whose
jobs were eliminated or whether the eliminated jobs were
those of strikers.
Klingensmith's testimony regarding elimination of me-
chanics jobs is far from persuasive. But at best, the record
fails to establish that any jobs were eliminated prior to
Lopez' application for reinstatement on March 17. I accord-
ingly find that his job still existed on March 17 and that he
was entitled to reinstatement on that date.
(i) Three striking office employees were replaced prior to
their applications for reinstatement . The dates of their ap-
plications and the hire dates of their replacements are as
follows:
Striker Date of Application
Bryan March 17
Gerlach March 16
Lanter March 17
Replacement Hire Date
Blankenship March 13
Felty March 13
Hill March 13
I find that the three strikers were not entitled to reinstate-
ment when they applied therefor. The record shows, howev-
er, that each of the replacements thereafter left
Respondent's employ on the following dates:
Blankenship August 9
Felty May 12
Hill March 17
There is no evidence that Respondent sought out the three
replaced strikers to offer them reinstatement, or that any of
them obtained substantially equivalent employment prior
to the dates oil which their replacements left Respondent's
employ. I therefore find that Respondent was obligated to
reinstate each of the three on those dates."
(j) At the time she went on strike, employee Esparza was
employed as an industrial inventory clerk. Respondent
hired one Smalley in that category on March 16. Esparza
applied for reinstatement on March 17. For the reasons
noted in paragraph (c), supra, I find that Esparza was enti-
tled to reinstatement on March 17.
(k) Employee George was employed as a posting clerk
when she went on strike on March 10. On that date, employ-
ee King, an accounts payable clerk, was transferred to
11 Laidlaw Corp, 171 NLRB 1366 , enfd 414 F.2d 99 (C.A 7, 1969), cert.
denied 397 U.S 920 (1970), Little Rock Airmotive, Inc, 182 NLRB 666, enfd.
in part 455 F.2d 163 (C.A. 8, 1972).
George's position and was still so employed at the time of
the hearing. I find that George had been replaced when she
applied for reinstatement on March 17, and that Respon-
dent was not obligated to reinstate her. There is nothing to
show that the transfer of King was made for improper rea-
sons. Although the record shows that from and after March
17 Respondent hired a series of individuals to work as an
accounts payable clerk, this does not establish that the re-
placement of George by King was temporary or that it was
not motivated by legitimate business considerations.
(1) Employee Johansen was employed as purchasing
clerk in the lab department at the time he went on strike.
On November 10, 1971, Office Manager Ottinger had re-
ported to Klingensmith that Johansen was not performing
well, and recommended that employee Hernandez, who
worked in the lab department, be promoted to Johansen's
job. The parties stipulated that after the strike began Her-
nandez was promoted to Johansen's job, and Ottinger testi-
fied without contradiction that Hernandez began
performing his new duties on March 13 or 14. So far as the
record shows, the promotion was permanent and was made
for legitimate business reasons. Johansen applied for rein-
statement on March 17. I find that he had been replaced,
and that Respondent was not obligated to reinstate him.
(m) Employee Seamans was employed as inventory clerk
in the lab department at the time he went on strike. He
applied for reinstatement on March 16. The record shows
that Respondent hired one Standish on that date and that
he began working on March 27. However, the record con-
tains conflicting evidence as to exactly what happened in
the laboratory department. Ottinger testified that Standish
was hired to replace Seamans. Documentary evidence indi-
cates that Seamans' job was eliminated and that Standish
was a replacement for Hernandez who, as noted, had been
promoted. It is unnecessary to resolve the conflict, since the
same result follows irrespective of which evidence is accept-
ed. Assuming that Standish was a replacement for Seamans,
the record fails to show that he was hired as a replacement
for Hernandez and that Seamans' job was eliminated, the
record does not show that the elimination occurred before
Seamans applied for reinstatement, and he would be enti-
tled to reinstatement. I find that under either factual situa-
tion Seamans was entitled to reinstatement on March 16.
(n) Employee Cerjak was employed as a filing clerk at the
time she went on strike. She applied for reinstatement on
March 16. On that day, Respondent employed one White-
head as a filing clerk. She began working on March 17 and
was still employed in that job at the time of the hearing.
Since the record fails to show that Whitehead was hired
before the time Cerjak applied for reinstatement, I find that
she was entitled to reinstatement on March 16.
(o) Employee Lowman applied for reinstatement on
March 16, and was not replaced until March 17. I find that
Lowman was entitled to reinstatement on March 16.
(p) Employee Kanehl applied for reinstatement on
March 17. She had been replaced on March 14 or 15. I find
that Kanehl was not entitled to reinstatement.
(q) Employer Draper was employed as an industry order
clerk when he went on strike on March 10. Prior to that
date, i.e., on March 8, Respondent had discharged employ-
ee Crowley, who was similarly employed as an industry
LOS ANGELES CHEMICAL CO. 253
order clerk. Respondent hired Thompson as an industry
order clerk on March 14. Draper applied for reinstatement
on March 17, when one job in the said classification was
open. Respondent hired Ackley in that classification on
May 23. I find that Draper was entitled to reinstatement on
March 17. Office Manager Ottinger testified that Thomp-
son was hired to replace Draper. But, although he admitted
that the jobs held by Draper and Crowley involved the same
duties, Ottinger failed to explain why Draper could not have
filled Crowley's job on March 17 except to say that Draper
was more experienced than Crowley. This is hardly an ade-
quate explanation. Little Rock Airmotive, Inc. v. N.L. R.B.,
supra, 455 F.2d at 168, fn. 7.
(r) Employee Lane was employed as a billing clerk but
primarily performed numbering functions at the time she
went on strike. She applied for reinstatement on March 16.
On February 10, Ottinger had recommended reducing the
billing department by one employee through consolidation
of the numbering and filing functions. He testified that such
reduction was effected by eliminating Lane's job. Although
Ottinger testified that the strike presented an opportunity
to carry out the consolidation, he did not disclose when
Lane's job was eliminated. 12 Since the record fails to estab-
lish that her job was eliminated before her request for rein-
statement on March 16, I find that Lane was entitled to
reinstatement on that date.
(s) The General Counsel contends that none of the indi-
viduals hired before the strikers applied for reinstatement
should be regarded as replacements for the strikers because
the record establishes that they were hired as temporary
replacements. I disagree. In support of his contention, the
General Counsel relies on testimony by Jones and Klingen-
smith that as of March 15 Respondent would have been
willing to reinstate all the strikers, and to discharge all who
had been hired as replacements for any of them, if the
Union had not insisted upon reinstatement of the three
discharged employees. I find that, contrary to the General
Counsel's assertion, such testimony does not show that the
strikers' jobs were still open when the strikers applied for
reinstatement. With respect to the replacements for office
employees, Ottinger testified without contradiction that
they were permanent.
(t) The record contains conflicting testimony as to
whether Jones, at a meeting with the Union on March 21,
offered to place the strikers on a preferential hiring list if the
Union would so request, and as to whether Matull rejected
the offer. On March 23, Jones sent the Union a letter offer-
ing to place the strikers on a preferential hiring list and to
give them preference "should openings occur and they are
available and qualified." Matull could not recall having
seen the letter. Such offers, even if made, did not satisfy
Respondent's obligation to take back replaced strikers who
were entitled to reinstatement when vacancies arose. Re-
spondent had a duty to seek out such strikers when the
vacancies arose. Little Rock Airmotive, Inc. v. N. L. R. B., su-
pra, 455 F.2d at 168, fn. 8.
(u) The record contains evidence indicating that some of
12 The record does not show when the strike ended, but suggests that it may
still have been in existence on June 29.
the strikers named in the complaint engaged in misconduct
during the strike. I find, however, that the record is insuffi-
cient to support a finding that such strikers lost their right
to reinstatement. There is nothing to show that Respondent
refused to reinstate any striker because of misconduct. On
the contrary, the evidence shows that Respondent initially
took the position that it would not reinstate the strikers
because the Union insisted upon reinstatement of the three
discharged employees. Later, it relied on replacement and
job elimination. In addition, the record shows that Respon-
dent condoned similar misconduct of two strikers not here
involved by reinstating them. It is thus apparent that Re-
spondent did not regard any of the strikers as unemploya-
ble.
(v) In sum, I find that Respondent did not establish that
it had a legitimate and substantial business justification for
refusing to reinstate the 29 strikers who, as found above,
were entitled to reinstatement, and that such refusal violat-
ed Section 8(a)(3) and (1) of the Act. N.L.R.B. v. Fleetwood
Trailer Co., supra. I further find that Respondent did not
violate those sections by refusing to reinstate Patino,
George, Johansen, and Kanehl.
CONCLUSIONS OF LAW
A. By unlawfully refusing to reinstate the 29 employees
named in Appendix A [omitted from publication], as found
herein , Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
B. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
C. Respondent did not violate the Act by any conduct
not found herein to constitute an unfair labor practice.
THE REMEDY
In order to effectuate the purposes of the Act, I find that
it is necessary, and recommend, that Respondent be or-
dered to cease and desist from the unfair labor practices
found, and from in any like or related manner interfering
with, restraining , or coercing its employees.
Affirmatively, I recommend that Respondent be ordered
to offer to the employees named in Appendix A [omitted
from publication] immediate and full reinstatement to the
positions which they held at the time they went on strike or,
if those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority and other
rights and privileges. I further recommend that Respondent
make whole the employees named for any loss of earnings
suffered by reason of the discrimination suffered by them,
by paying to each a sum of money equal to that which each
would have earned as wages from the date each was entitled
to reinstatement to the date on which Respondent offers
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement as aforesaid , less net earnings , if any, during NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
such period. Backpay and interest thereon shall be comput- 716.
ed in the manner set forth in F. W. Woolworth Company, 90 [Recommended Order omitted from publication.]